Framingham Reporter v. Wellesley, Town of - Public Schools (SPR 20210921)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records April 15, 2021 SPR21/0921 Ivria Fried, Esq. Miyares and Harrington LLP 40 Grove Street, Suite 190 Wellesley, MA 02482 Dear Attorney Fried: I have received your petition on behalf of the Town of Wellesley (Town) seeking to charge in excess of the statutory fees in responding to a request made by Framingham Reporter. G. L. c. 66, § 10(c). As required by law, it is my understanding that the Town furnished a copy of its petition to the requestor. Id. On April 7, 2021, Framingham Reporter requested “all email received by Wellesley, MA School Committee member Matt Kelley between the dates of December 10, 2017 and December 25, 2017, inclusive.” Petitions to Assess Fees - Municipality A municipality may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § 10(d). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.05) per page may be assessed for a black and white single or double-sided photocopy of a public record. G. L. c. 66, § 10(d)(i). Municipalities may not assess a fee for the first two hours of employee time to search for, compile, segregate, redact or reproduce the record or records requested unless the municipality has 20,000 people or less. G. L. c. 66, § 10(d)(iii). Where appropriate, municipalities may include as part of the fee an hourly rate equal to or less than the hourly rate attributed to the lowest paid employee who has the necessary skill required to search for, compile, segregate, redact or reproduce a record requested, but the fee shall not be more than $25 per hour. Id. However, municipalities may charge more than $25 per hour if such rate is approved by the Supervisor of Records under a petition under G. L. c. 66, § 10(d)(iv). A fee shall not be assessed for time spent segregating or redacting records unless such segregation or redaction is required by law or approved by the Supervisor of Records under a petition under G. L. c. 66, § 10(d)(iv). See G. L. c. 66, § 10(d)(iii); 950 C.M.R. 32.06(4). One Ashburton Place, Room 1719, Boston, Massachusetts 02108 • (617) 727-2832• Fax: (617) 727-5914 sec.state.ma.us/pre • pre@sec.state.ma.us

Ivria Fried, Esq. SPR21/0921 Page 2 April 15, 2021 Petitions relating to fees must be submitted to the Supervisor within ten business days after receipt of a request for public records. 950 C.M.R. 32.06(4)(g). Current Petition In its petition dated April 9, 2021, the Town requests “… authorization to charge a rate higher than $25 per hour, as further described below, for actual time spent by the School Department to segregate and redact the requested records.” The Town posits that “… portions of the requested records may be protected under Exemption (a), which applies to records that are specifically or by necessary implication exempted from disclosure by statute. In this case, some of the emails may contain student information protected from release under the Family Educational Rights & Privacy Act (‘FERPA’), 20 U.S.C § 1232g and 34 C.F.R. Part 99.” The Town additionally notes, “[t]he Framingham Reporter has requested all emails received by Mr. Kelley during the specified period. The nature of these emails may contain PII. The School Department must therefore review each record to determine if they can be released or must instead be withheld or redacted pursuant to FERPA.” The Town cites Exemption (c) stating, “Mr. Kelley may communicate via email regarding the performance of an employee within the school department. Exemption (c) would likely protect from release any information that would be helping in making an employment decision… As elected officials, the public may seek to communicate with their elected official about highly private issues that are affecting their students. It is not uncommon for Committee members to receive information about a particular student that, if disclosed, would constitute an unwarranted invasion of privacy.” Additionally, the Town cites Exemption (n) stating, “School Committee members may communicate with School Department staff, the Police Department, or the Fire Department about security measure or emergency response protocols that, if released, could jeopardize public safety, including the safety of school children. This information would be protected under Exemption (n).” Further, “School Committee members may also receive information from the Town or Department’s attorneys. It is possible that such information may not be subject to release. With respect to fees, the Town explains, “[t]here are 86 potentially responsive email chains. Ms. Mahr is the lowest paid employee capable of performing this review; the costs associated with Ms. Mahr are $87.91 per hour. She has the authority to review these emails, which may include confidential privacy information. She also has the full understanding of FERPA and can interpret that law as it applies to records. However, rather than requesting to assess fees at the actual rate that the Town will be charged for Ms. Mahr’s time, the School Department only seeks permission to charge $43.87, which is the hourly rate of Laura Ball, the Administrative Assistant to Assistant Superintendent of Finance and Operations.” The Town “… estimates that it will take approximately 3 minutes, on average, to review, and as necessary, redact each of the 86 emails (total of 4.3 hours).”

Ivria Fried, Esq. SPR21/0921 Page 3 April 15, 2021 I find the Town has met its burden to explain how, given the nature of the responsive records, the request could not prudently be completed without redaction or segregation. Further I find that in light of the factors listed in the Town’s petition, the Town may assess a fee for time spent segregating and redacting responsive records at a rate of $43.87 an hour. See G. L. c. 66, § 10(d)(iv). Conclusion For the reasons described above, the Town may assess a fee for the time spent to segregate and redact these requested records and assess an hourly fee at the rate of no more than $43.87. This office encourages Framingham Reporter and the Town to continue to communicate to facilitate providing records more efficiently and affordably. See G. L. c. 66, § 10(b)(vii) (a municipality shall suggest a reasonable modification of the scope of the request or offer to assist the requestor to modify the scope of the request if doing so would enable the municipality to produce records sought more efficiently and affordably). Any updated fee estimate by the Town must be in compliance with this determination, the Public Records Law, and its Regulations. Please note, Framingham Reporter has the right to seek judicial review of this decision by commencing a civil action in the appropriate superior court. See G. L. c. 66, § 10(d)(iv)(4), 10A(c). Sincerely, Rebecca S. Murray Supervisor of Records cc: Framingham Reporter Cynthia Mahr